New family and medical leave rules go into effect

New rules apply to workers requesting time off under the federal Family and Medical Leave Act, or FMLA. Generally, FMLA allows workers to take up to 12 workweeks of unpaid leave per year due to a serious health condition, a family member’s serious health condition, or a birth or adoption. The Act also allows leave due to a relative’s military deployment. Employees are eligible in most cases if they have worked at least 12 months for an employer that has 50 or more employees.

Here are some of the major changes in the Labor Department’s new rules:

  • Workers can be required to comply with standard call-in or other procedures to request leave, unless they are prevented from doing so by unusual circumstances (such as being treated in an emergency room). Workers who request leave must give the employer enough information to decide if they qualify; merely calling in sick isn’t good enough.
  • Employers have more time to decide whether to ask for a medical certification from an employee. They now have five days, instead of two days under the old rules.
  • “Light duty” assignments don’t count toward an employee’s 12 weeks of FMLA leave.
  • If an employee’s schedule varies from week to week, how much leave are they entitled to? Under the new rules, this is determined by figuring the average number of hours worked in a week over the past year, and treating this as a “workweek.”
  • An employer can count missed overtime against an employee’s leave entitlement if the employee would otherwise have been required to work the overtime.
  • Employers can take FMLA leave into account when determining bonuses for “perfect attendance” or meeting other performance goals.
  • Many new forms are required by the government, and new notices to employees are required as well.
  • An employee who brings a legal claim for a violation of FMLA rights can settle (or drop) the claim without having to get approval from a court or the Department of Labor.

Many people were disappointed that the new rules didn’t more clearly define what is a “serious health condition.” A number of employers had hoped that the rules would reduce employees’ ability to take “intermittent” leave in tiny increments. Many employers say that a worker’s ability to take a half hour of leave here and there is disruptive and unnecessarily complicated.

However, the rules do say that if an employee’s taking a tiny amount of leave prevents him or her from working the remainder of a shift (for instance, if the employee is a flight attendant), then the employer can count the entire shift as FMLA leave. Also, workers who take leave in short increments can be required to complete a “fitness for duty” evaluation before returning to work if the employer has a reasonable concern about safety.

It’s possible that there will be more changes to the FMLA soon. During last year’s campaign, President Obama proposed expanding coverage to companies with 25 or more employees (instead of 50) and allowing leave for elder care and for attending children’s school activities.